Opposition Brief — Winslow v. Board of Morgan County Commissioners

Supreme Court, U.S.

(9) FILED

No. 85-2059

SEP 17 1986

JOSEPH F. SPANIOL, yr.

aca CLERK

Supreme Court of the United States

October Term, 1986

Lt

Vv

RAINSFORD J. WINSLOW,

Petitioner,

v.

BOARD OF MORGAN COUNTY COMMISSIONERS,

Respondents.

Ly

Vw

On Petition for Writ of Certiorari to the

Supreme Court of the State of Colorado,

Case No. 868064

ne

Ww

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

"=

ww

Montoomery LittLe Youne

CampseL_t & McGrew, P.C.

J. Bayarp Youne

6900 East Belleview Avenue

Englewood, Colorado 80111

(303) 779-4344

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

QUESTION PRESENTED

Can the Colorado Supreme Court adopt a rule that

a district court may enjoin a pro se litigant within any

county or district from filing suit without a lawyer when

there is an appropriate finding of serious abuse of ju-

dicial process?

il

PARTIES

The Petition for Writ of Certiorari contains a slight

deviation of the identity of the parties. The identity of the

parties to the proceeding in the Colorado Supreme Court

were:

Board of County Commissioners of Morgan Coun-

ty, Colorado,

Petitioner,

v.

Rainsford J. Winslow,

Respondent.

, —— |

ill

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...... AO ATRL RO Oa i

Ne itaca. “ae

TABLE OF AUTHORITIES — iv

CITATION OF OPINIONS OF COURTS BELOW ..... 1

RE aS eT 1

CONSTITUTIONAL PROVISION ...... S a. =

RESPONDENT’S STATEMENT OF THE CASE ..... 1

SUMMARY OF ARGUMENT _.__ 3

ABGUMENT — is a Alte ce eC E E 3

i celal 5

IE a a ECC eo ee Oe App. 1

EN App. 9

Ee ee App. 12

So 9 Qe ) App. 14

iv

TABLE OF AUTHORITIES

CASES

Clinton v. United States, 297 F.2d 899, 369

U.S. 856, 82 S. Ct. 944, 8 L. Ed. 2d 14 0. 4

Roy v. Manchester Gas Company, 113 NH

140, 302 A.2d 825, 412 U.S. 942, 93 S. Ct.

2787, 37 L. Ed. 2d 403

Ruderer v. United States, 462 F.2d 897, 409

U.S. 1031, 93 S. Ct. 540, 34 L. Ed. 2d 482 0. 4

CITATION OF OPINIONS OF COURTS BELOW

Opinions from lower courts are cited as follows:

Board of County Commissioners of Morgan County v.

Rainsford J. Winslow, 706 P.2d 792 (Colo. 1985)

Board of County Commissioners of Morgan County v.

Rainsford J. Winslow, 717 P.2d 1003 (Colo. App. 1986)

—_

we

JURISDICTION

The petitioner asserts jurisdiction under Title 28

U.S.C. 1257, apparently under the claim that he has a right

under the Constitution of the United States deprived him

by the Supreme Court of the State of Colorado. That

Court’s final action was an order wherein a Petition for

Writ of Certiorari to the Colorado Court of Appeals was

denied on March 31, 1986 and an order wherein a Petition

for Rehearing was ordered stricken on April 15, 1986.

>}

CONSTITUTIONAL PROVISION

The Petitioner has set forth the Constitutional pro-

visions that he claims are applicable.

RESPONDENT’S STATEMENT OF THE CASE

The facts are that since 1979 the Petitioner and his

Wife have been litigants in several lawsuits regarding zon-

1

2

ing and sewer systems on a tract of land in Morgan County,

Colorado. Among the actions filed by Winslow were a

pro se attempt to compel the Morgan County District At-

torney to file criminal charges against Stanley Rosener

who allegedly hooked-up to Winslow’s sewer system with-

out permission and without paying any fee. On Decem-

ber 1, 1980 he filed a pro se action challenging the suffici-

ency of the County’s notice regarding zoning resolutions

and subdivision regulations. Summary Judgment was

granted in favor of the County, affirmed by the Court of

Appeals, with Certiorari denied by the Supreme Court of

the State of Colorado and the Supreme Court of the United

States.

In August, 1981, the County brought an action to seek

Winslow’s compliance with County zoning regulations.

He responded by filing a pro se action to stop the County’s

‘‘harassment.’’ In February, 1982, he filed another pro

se action seeking to void County zoning and subdivision

regulations. The County then filed an action seeking to

enjoin Winslow from prosecuting that action and from

further pro se appearances. These facts are recited in the

opinion of Colorado Supreme Court. Board of County

Commissioners v. Winslow, 706 P.2a 792 (Colo. 1985),

(Appendix A).

Winslow appealed to the Colorado Court of Appeals

which found that only the Supreme Court ef Colorado

could enjoin a litigant from further pro se appearances.

Certiorari was granted on this issue and the Supreme

Court of the State of Colorado made explicit a rule that

the District Court, as a Court of equity and general juris-

diction, may enjoin a litigant from filing pro se actions

upon a finding of a serious abuse of judicial process.

Board of County Commissioners v. Winslow, 706 P.2d 792,

795 (Colo. 1985). The case was then remanded to the Court

of Appeals to determine other issues raised by Winslow

and to decide the question of whether the District Court

abused its discretion in entering the injunction against

him. The Court of Appeals found that the Court did not

abuse its discretion. Board of County Commissioners v.

Winslow, 717 P.2d 1003 (Colo. App. 1986), (Appendix B).

Winslow again sought certiorari from the Colorado

Supreme Court. His petition was denied. (Appendix C)

He petitioned for rehearing and that petition was ordered

stricken. (Appendix D)

Ly

Vv

SUMMARY OF ARGUMENT

Respondent argues that Petitioner has not shown that

Colorado has decided a federal question which is in con-

flict with other decisions. The issue has not been settled

by the Supreme Court of the United States. Certiorari

has been denied by this Court in similar cases.

ARGUMENT

It is respectfully submitted that certiorari should not

be granted in this case.

It was refused in a very similar case where a plain-

tiff attempted to litigate and relitigate his claims for com-

pensation and other relief. He was enjoined from fur-

ther pleadings in the courts of the state. Roy v. Man-

chester Gas Company, 113 NH 140, 302 A.2d 825 (1973)

cert. denied, 412 U.S. 942, 93 S. Ct. 2787, 37 L.Ed. 2d 403

(1973).

It would be proper to issue an injunction prohibiting

further pro se action unless court approval was obtained

where a plaintiff had filed 21 suits against fellow employees

and there was a specific finding of bad faith on the part

of the plaintiff where he filed suits in furtherance of a

vendetta against the United States. Ruderer v. United

States, 462 F.2d 897 (8th Cir. 1972), appeal dismissed and

cert. denied, 409 U.S. 1031, 93 S. Ct. 540, 34 L.Ed. 2d 482

(1972).

The subjection of another to repeated baseless and

vexatious suits on the same subject matter is sufficient

grounds for issuance of an injunction against the perpe-

trator. Clinton v. United States, 297 F.2d 899 (9th Cir.

1961), cert. denied, 369 U.S. 856, 82 S. Ct. 944, 8 L.Ed. 2d

14 (1962).

fo)

CONCLUSION

For the reasons stated above, the Respondent submits

that a Writ of Certiorari should not be granted in this

case.

Respectfully submitted,

Montoomery LitrtrLe Youne

CampsBeLL & McGrew, P.C.

By: /s/ J. Bayarp Youne

6900 East Belleview Avenue

Englewood, Colorado 80111

(303) 779-4344

Attorneys for Respondent

App. 1

APPENDIX A

BOARD OF COUNTY COMMISSIONERS

OF MORGAN COUNTY, Colorado, Petitioner,

v.

Rainsford J. WINSLOW, Respondent.

No. 83SC4-5.

Supreme Court of Colorado,

En Bane.

Sept. 30, 1985.

Rehearing Denied Oct. 21, 1985.

County filed petition seeking to enjoin litigant from

filing any further actions wherein he appeared as pro se

plaintiff. The District Court, Morgan County, Dean John-

son, J., issued injunction, and Appeal was taken. The

Court of Appeals, 679 P.2d 1089, reversed, and county was

granted certiorari. The Supreme Court, Dubofsky, J.,

held that the district court, as a court of equity and gen-

eral jnrisdiction, may enjoin a litigant from filing suits

pro se within any county in the district upon a finding of

serious abuse of judicial process.

Reversed and remanded.

William H. ReMine, III, Montgomery, Little, Young,

Campbell & McGrew, P.C., Englewood, for petitioner.

Rainsford J. Winslow, Fort Morgan, for respondent.

DUBOFSKY, Justice.

App. 2

We granted certiorari to review the court of appeals’

decision in Board of County Commissioners v. Winslow,

679 P.2d 1089 (Colo.App. 1983), which held that the juris-

diction to hear a request for an injunction preventing

Rainsford J. Winslow from filing actions or pleadings

pro se in the District Court in and for the County of Mor-

gan lies exclusively with the state supreme court. We re-

verse and remand the case to the court of appeals for con-

sideration of the remaining issues on appeal.

Since 1979, Winslow, who is not an attorney, and his

wife have been litigants in several lawsuits regarding zon-

ing and sewer systems on a tract of land they own in Mor-

gan County. On June 21, 1979, a class action suit was filed

against Winslow and the Board of County Commissioners

of Morgan County (the county) concerning ‘‘road issues’’

and an improvement agreement involving the Morgan

Heights subdivision, which was developed by Winslow. He

claims that his attorney’s fees for this action were ap-

proximately $150,000 and that he began to appear pro se

in this and subsequent actions to avoid financial ruin. The

county prevailed on a crossclaim against Winslow for at-

torney’s fees and costs.

The first action in which Winslow appeared as a pro se

plaintiff arose when Stanley Rosener allegedly hooked up

to Winslow’s sewer system without permission and with-

out paying any fee. Winslow asked Morgan County Dis-

trict Attorney, Doyle Johns, Jr., to file criminal charges

against Rosener. When Johns failed to file charges and

refused to explain his decision, Winslow filed a ‘‘Commnu-

nication Demand”’ with the Morgan County District Court,

which granted Johns’ motion to dismiss for failure to state

a claim upon which relief could be granted.

App. 3

Winslow then filed a pro se complaint on December 1.

1980, challenging the sufficiency of the county’s notice re-

garding particular zoning resolutions and subdivision reg-

ulations. The district court granted the county’s motion

for summary judgment. The court of appeals affirmed,

and certiorari was denied by this court and by the United

States Supreme Court.

On August 4, 1981, the county brought an action seek-

ing Winslow’s compliance with a county zoning regulation

that requires a Special Use Permit for any sewer system

modification. Winslow responded by filing a pro se action

to stop the county’s ‘‘harassment.’’ He claimed that only

one other sewer system was required to obtain such a per-

mit and that the numerous remaining systems were not re-

quired to obtain permits. These actions were consolidated,

and the district court ordered Winslow to obtain the per-

mit and to pay court costs.

On February 10, 1982, Winslow filed a pro se action

(No. 82CV20) alleging that certain county zoning and sub-

division regulations are void because of procedural defects.

While this action was pending, the county filed a petition

seeking to enjoin Winsiow from prosecuting the action pro

se and from further pro se appearances in the Thirteenth

Judicial District. At the ensuing hearing. the Clerk of the

Morgan County District Court identified Register of Ac-

tion sheets for each of the actions involving Winslow and

testified that Winslow’s case files were more voluminous

and contained longer pleadings than similar case files.

The district court found that Winslow:

has appeared pro se before this Court on many occa-

sions... .; that his pleadings are usually extraordinar-

App. 4

ily voluminous and replete with irrelevant and imma-

terial matter; that the actions filed by [Winslow],

except for the latest, have all been determined ad-

versely to him; that this latest action appears to be an

attempt to raise an issue which is res adjudicata by

reason of the Court’s judgment in one of [Winslow’s]

prior suits; that [Winslow’s] actions and methods of

procedure impose a heavy burden on the resources of

this Court.... That the unwarranted burden placed on

the operation of this Court due to [Winslow’s] actions

and the resultant expense thereof are prejudicial to

the interests of the taxpaying public; that where it is

necessary to prohibit such an abuse of the judicial

process within this Court, it is within the power and

authority of this Court to prevent the further commis-

sion of the abuse and the concomitant injury to pub-

lie rights and interests. ...

The court’s amended injunction states:

that [Winslow] be and he is enjoined and restrained

from filing any further actions or pleadings in the Dis-

trict Court in and for the County of Morgan, Colorado,

wherein he appears pro se and seeks affirmative re-

lief, as contrasted from purely defensive action, and

that he be and is further enjoined from appearing pro

se in Civil Action No. 82CV20 in said Court and that he

arrange for the appearance of duly licensed legal coun-

sel in said action.

After Winslow retained counsel, the court granted sum-

mary judgment against the county on the basis that

the county improperly adopted the zoning regulations at

issue.

Winsiow appealed the district court’s injunctive rul-

ing on several grounds. The court of appeals did not ad-

dress Winslow’s substantive bases for appealing the dis-

trict court’s injunction. Instead, the court held that only

App. 5

the Supreme Court of Colorado may enjoin a litigant from

further pro se appearances. The county petitioned for a

writ of certiorari on the issue of whether the district court

had jurisdiction to enter the injunction. Winslow peti-

tioned for certiorari on the substantive issues he raised

before the court of appeals.! We granted certiorari on the

limited question of whether a district court may issue an

injunction against a litigant proceeding pro se in that dis-

trict court.

On a number of occasions this court has enjoined par-

ties from appearing pro se in all courts of the state. Board

of County Comm’rs v. Howard, 640 P.2d 1128 (Colo. 1982) ;

People v. Dunlap, 623 P.2d 408 (Colo. 1981); Board of

County Comm’rs v. Barday, 197 Colo. 519, 594 P.2d 1057

(1979); People v. Spencer, 185 Colo. 377, 524 P.2d 1084

(1974); Shotkin v. Kaplan, 116 Colo. 295, 180 P.2d 1021

1947). The common thread running through these opin-

ions is that a litigant’s right of access to the courts must

be balanced against and, in a proper case, must yield to the

interests of other litigants and of the public in general in

protecting judicial resources from the deleterious impact

of repetitious, baseless pro se litigation.

This court has exercised discretion in determining

whether to issue an injunction prohibiting all pro se ap-

pearances as plaintiff or to limit the injunction to pro se

1. Those issues include whether the evidence supported the

issuance of an injunction, whether the scope of the injunction

was too broad, whether Winslow should have been advised

by the district court of his right to a jury trial, and whether

the district court erred in prohibiting Winslow from examining

the county's attorney during the hearing on Winslow’s motion

for a new trial.

App. 6

appearances in cases on a given subject matter. See, e.g.,

Barday, 197 Colo. at 521, 594 P.2d at 1058 (injunction lim-

ited to lawsuits arising out of respondent’s marital prob-

lems). Several concerns motivated the issuance of an in-

junction in each case: preventing abuse of the judicial pro-

cess, refusing to allow the judicial process to be used to

harass others, and conserving limited judicial resources.

See Dunlap, 623 P.2d at 410; Barday, 197 Colo. at 522, 594

P.2d at 1059; Spencer, 185 Colo. at 381, 524 P.2d at 1086.

An injunction may be necessary to prevent further

abuse of judicial resources by a pro se litigant because a

party acting in his own behalf is not subject to the dis-

ciplinary procedures that prevent abuse of the system by

attorneys. Shotki, 116 Colo. at 298, 180 P.2d at 1022. For-

bidding a party from filing cases pro se does not infringe

upon his constitutional right of access to the courts be-

cause he may still obtain access to judicial relief by em-

ploying an attorney authorized to practice in the state of

Colorado. Barday, 197 Colo. at 522, 594 P.2d at 1059.

In Barday, 197 Colo. at 521, 594 P.2d at 1058-59, we

identified the source of our power to issue state-wide in-

junctions prohibiting pro se appearances as article VI, sec-

tion 2(1) of the Colorado Constitution, which vests this

court with ‘‘general superintending control over ali in-

ferior courts.’’ In Shotkin, where the order prohibiting

pro se appearance was issued in the context of an appeal,

we indicated in dicta that trial courts also might be con-

cerned about the conservation of judicial resources and

therefore might withhold access to a pro se plaintiff who

has abused the judicial process. 116 Colo. at 298, 180 P.2d

at 1022. We do not see any reason why a district court

App. 7

should not have jurisdiction to prevent an abuse of judicial

process by a pro se litigant in the courts of any county in

the district. The district court is in the best position to

evaluate disruption of its judicial processes, and it has the

inherent power to control the conduct of litigants appear-

ing before it. As long as the power to enjoin pro se ap-

pearances does not extend beyond the boundaries of the

judicial district, there is no danger that an injunction will

control the course of proceedings in another judicial dis-

trict or that a district court will usurp the supervisory du-

ties of this court. We now make explicit the suggestion

in Shotkin: a district court. as a court of equity and gen-

eral jurisdiction, may enjoin a litigant from filing suits

pro se within any county in the district upon a finding of a

serious abuse of judicial process. Our holding is consistent

with the law in other jurisdictions in which a trial court

may enjoin a party from filing new pleadings or lawsuits

pro se. See, e.g., Pittam v. Maynard, 103 Idaho 177, 646

P.2d 419 (1982); Eddy ex rel. Pfeifer v. Christian Science

Board of Directors, 62 Til.App.3d 918, 19 Ill.Dee. 781, 379

N.E.2d 653 (1978); Roy v. Manchester Gas Co., 113 N.H.

140, 302 A.2d 825, cert. denied, 412 U.S. 942, 93 S.Ct. 2787,

37 L.Ed.2d 403 (1973); Muka v. Hancock Estabrook, Ryan,

Shove & Hust, 126 Mise.2d 146, 465 N.Y.S.2d 416 (Sup.Ct.

1983); Whatcom County v. Kane, 31 Wish.App. 250, 640

P.2d 1075 (1981).

In determining whether to issue an injunction, the

court should consider the seriousness of the abuses in light

of our previous cases enjoining pro se appearances. Cf.

Whatcom County, 640 P.2d at 1077. We reverse the court

of appeals and remand for consideration of the issues

App. 8

raised by Winslow on appeal, including the question of

whether the district court abused its discretion in entering

the injunction against him.

Judgment reversed and case remanded.

App. 9

APPENDIX B

THE BOARD OF COUNTY COMMISSIONERS OF

MORGAN COUNTY, Colorado, Petitioner-Appellee,

v.

Rainsford J. WINSLOW, Respondent-Appellant.

No. 82040417

Colorado Court of Appeals,

Div. I.

Jan. 9, 1986.

Rehearing Denied Jan. 30, 1986.

Certiorari Denied (Winsiow)

March 31, 1986.

County filed petition seeking to enjoin litigant from

filing any further actions wherein he appeared as pro se

plaintiff. The District Court, Morgan County, Dean John-

son, J., enjoined litigant from filing as plaintiff any fur-

ther actions wherein he appeared pro se. On appeal, the

Court of Appeals, 679 P.2d 1089, Berman, J., reversed.

County was granted certiorari. The Supreme Court, 706

P.2d 792, Dubofsky, J., reversed and remanded. On re-

mand, the Court of Appeals, Berman, J., held that trial

court did not abuse its discretion in enjoining litigant from

prosecuting pending action pro se and from further pro se

appearances in its judicial district.

Affirmed.

E. Ord Wells Fort Morgan, for petitioner-appellee.

Rainsford J. Winslow, Fort Morgan, pro se.

App. 10

BERMAN, Judge.

In accordance with the holding of the Supreme Court

in Board of County Commissioners v. Winslow, 706 P.2d

792 (Colo. 1985), we address the issues raised by Winslow

on appeal, including the question whether the district court

of Morgan County abused its discretion in entering judg-

ment against Winslow prohibiting him from appearing pro

se. We conclude that no abuse of discretion occurred.

Therefore, we do not address Winslow’s remaining con-

tentions.

In Board of County Commissioners v. Winslow, supra,

the Supreme Court ruled that a district court, as a court

of equity and general jurisdiction, has the power to en-

join a litigant from filing suits pro se within the district

upon a finding of a serious abuse of judicial process.

Here, Morgan County filed a petition in the district

court seeking to enjoin Winslow from prosecuting a pend-

ing action pro se and from further pro se appearances in

the Thirteenth Judicial District. The court granted the

petition, ordering Winslow enjoined and restrained from

filing any further pro se actions or pleadings in its judicial

district.

We agree with the findings made by the district court

in granting the injunction. In support of its decision, the

district court made the following findings:

‘*Winslow has appeared pro se before this court on

many occasions ... that his pleadings are usually ex-

traordinarily voluminous and replete with irrelevant

and immaterial matters; that the actions filed by Win-

slow, except for the latest, have all been determined

adversely to him; that this latest action appears to he

App. 11

an attempt to raise an issue which is res ajudicata

[sic] by reason of the Court’s judgment in one of Win-

slow’s prior suits; that Winslow’s actions and meth-

ods of procedure impose a heavy burden on the re-

sources of this Court. ... That the unwarranted bur-

den placed on the operation of this Court due to Win-

slow’s actions and the resultant expense thereof are

prejudicial to the interests of the taxpaying public;

that where it is necessary to prohibit such an abuse

of the judicial process within this Court, it is within

the power and authority of this Court to prevent the

further commission of the abuse and concomitant in-

jury to public rights and interests... .’’

There is ample justification for the district court’s

findings and conclusions, and we conclude that the district

court did not abuse its discretion.

Judgment affirmed.

KELLY and METZGER, JJ.. concur.

App. 12

APPENDIX C

SUPREME COURT, STATE OF COLORADO

Case No. 86SC64

Certiorari to the Colorado Court of Appeals 82CA0417

Morgan County District Court 82CV2]

ORDER OF COURT

RAINSFORD J. WINSLOW,

Petitioner,

Vv.

BOARD OF MORGAN COUNTY COMMISSIONERS,

Respondent.

(Filed March 31, 1986)

Upon consideration of the Petition for Writ of Cer-

tiorari to the Colorado Court of Appeals, and after review

of the record, the briefs. and the opinion of said Court of

Appeals,

IT IS THIS DAY ORDERED that said Fetition for

Writ of Certiorari shall be, and the same hereby is, DE-

NIED.

BY THE COURT, EN BANC, MARCH 381, 1986.

ec: Gary Sonke, Clerk

Colorado Court of Appeals

Rainsford J. Winslow

P.Q, Box 250

Kort Morgan, CO 80701

App. 13

Montgomery Little Young Campbell & McGrew, P.C.

J. Bayard Young

6900 East Belleview Avenue

Englewood, CO 80111

E. Ord Wells

P.O. Box 916

Fort Morgan, CO 80701

Honorable Dean Johnson

c/o Honorable Joseph J. Weatherby

Morgan County District Court

Morgan County Courthouse

P.O, Box 130

Fort Morgan, CO 80701

App. 14

APPENDIX D

SUPREME COURT, STATE OF COLORADO

Case No. 86 SC 64

CERTIORARI TO THE COLORADO COURT OF

APPEALS

ORDER OF COURT

RAINSFORD J. WINSLOW,

Petitioner,

vs.

BOARD OF MORGAN COUNTY COMMISSIONERS,

Respondent.

(Filed April 16, 1986)

(pon consideration of the Petition for Rehearing filed

by Petitioner, Pro Se herein, and now being sufficiently

advised in the premises,

It Is This Day Ordered that said Petition shall be,

and the same hereby is, Stricken.

BY THE COURT, APRIL 15, 1986

ec: Rainsford J. Winslow

P.O. Box 250

Fort Morgan, CO 80701

J. Bayard Young

6900 E. Belleview Avenue

Englewood, CO 80111

E. Ord Wells

229 East Kiowa Avenue

Fort Morgan, CO 80701